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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________
Portsmouth Family Division
No. 2003-101
IN THE MATTER OF SUSAN C. BARRETT
AND JOHN T. COYNE
Argued: October 15, 2003
Opinion Issued: February 3, 2004

Susan C. Barrett, by brief and orally, pro se.

Dwyer & Donovan, P.A., of Portsmouth (Elizabeth A. Donovan

on the brief and orally), for the respondent.

DALIANIS, J. The respondent, John T. Coyne, appeals an

order recommended by a Marital Master (Harriet J. Fishman, Esq.)
and approved by the Portsmouth Family Division (DeVries, J.). We
vacate and remand.

The record supports the following facts. Coyne and the

petitioner, Susan C. Barrett, were divorced on August 22, 1996,
in the Commonwealth of Pennsylvania. The parties agreed to share
joint legal custody of their two daughters, Kathryn and
Jacqueline, with Barrett having primary physical custody.
Additionally, Coyne was ordered to pay child support.
Barrett and the children moved to New Hampshire in 1998. At
approximately the same time, Coyne ceased communication with
them, although he continued to pay child support. Kathryn
attended Winnacunnet High School, a public secondary school in
Hampton, during her freshman year. Kathryn had been diagnosed in
1997 with attention deficit disorder and she suffered emotional
problems due to her estranged relationship with Coyne. As a
result of both conditions, she failed her freshman year.
Although Barrett met with the Winnacunnet administration, Kathryn
was neither coded for special education nor provided with other
assistance.
In order to help her daughter, Barrett decided to enroll her
in private school. Kathryn took summer courses and qualified for
acceptance as a sophomore at Tilton School (Tilton), a private
secondary school. Despite the high cost of private school,
Barrett believed that unless Kathryn attended private school she
would continue to fail. When requested by Tilton to provide
financial information, Coyne submitted the necessary forms
without objection. Because of Coyne's and Barrett's financial
status, Tilton did not give Kathryn significant financial aid.
Kathryn's grades improved upon her enrollment at Tilton and
she passed both her sophomore and junior years. In 2002 Barrett
suffered financial difficulties and asked Coyne to pay for
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Kathryn's tuition to enable her to attend Tilton in her senior
year. Coyne refused Barrett's request.

Barrett filed a motion in the Portsmouth Family Division

seeking an order that Coyne contribute financially towards
Kathryn's senior year at Tilton. The trial court initially
found, on October 2, 2002, that Coyne "[did] not have the
ability to pay" any amount towards Kathryn's senior year at
Tilton.
Barrett filed a motion for reconsideration, arguing that
Coyne's ability to pay was greater than that presented to the
court because Coyne had failed to include his current wife's
income in his financial statements. The trial court reconsidered
and ordered Coyne to pay $8,000 of Kathryn's school tuition.
On appeal, Coyne argues that the trial court erred in
applying an "ability to pay" standard when ordering him to pay
for Kathryn's private school tuition in addition to child
support. We will uphold the trial court's decision unless it is
unsupported by the evidence or tainted by an error of law. In
the Matter of Peirce and Peirce, 146 N.H. 611, 613 (2001).

While we have considered the issue of college education

expenses, see In the Matter of Breault & Breault, 149 N.H. 359
(2003), the award of private secondary education expenses for a
minor child is an issue of first impression for this court. Two
statutes are relevant to our analysis: (1) RSA 458:17, I (1992),
which provides that "the court shall make such . . . decree in
relation to the support, education, and custody of the children
as shall be most conducive to their benefit and may order a
reasonable provision for their support and education"; and (2)
RSA chapter 458-C (Supp. 2002), the child support guidelines,
adopted by the legislature "to establish a uniform system to be
used in the determination of the amount of child support," RSA
458-C:1.

In cases of statutory interpretation, we are the final

arbiter of the legislature's intent as expressed in the words of
the statute considered as a whole. In the Matter of Coderre &
Coderre, 148 N.H. 401, 403 (2002). We interpret legislative
intent from the statute as written, and, therefore, we will not
consider what the legislature might have said or add words that
the legislature did not include. Id. Furthermore, we interpret
statutes in the context of the overall statutory scheme and not
in isolation. Id.
There exists an inconsistency between RSA 458:17, I, and RSA
chapter 458-C. RSA 458:17, I, on its face appears to authorize
an award of education expenses in addition to an award for child
support. RSA chapter 458-C, adopted after RSA 458:17, I,
however, purports to allow for deviations from the child support
guidelines only when "the application of the guidelines would be
unjust or inappropriate," RSA 458-C:4, II, IV, because of
"special circumstances," RSA 458-C:5, which include "ongoing
extraordinary . . . education expenses," RSA 458-C:5, I(a).
We consider all statutes concerning the same subject matter
in interpreting any one of them and, where reasonably possible,
we construe statutes as consistent with each other. Coderre, 148
N.H. at 404. When interpreting two statutes that deal with a
similar subject matter, we construe them so that they do not
contradict each other, and so that they lead to reasonable
results and effectuate the legislative purpose of each statute.
Id.

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The purpose of RSA chapter 458-C is not only to ensure
uniformity in determining the amount of child support, but also
to ensure that both the custodial and non-custodial parents share
in the support responsibility for their children, according to
the relative percentage of each parent's income. See RSA 458-
C:1; see also RSA 458-C:2, II, IX, XI; RSA 458-C:3, I, II, III.
Through a complex scheme of definitions and formulae, the
legislature provided guidelines from which the trial court first
determines a parent's total child support obligation. See RSA
458-C:2, II, XI; RSA 458-C:3. The legislature has also
authorized the trial court to deviate from those guidelines when
"the application of the guidelines would be unjust or
inappropriate," RSA 458-C:4, II, IV, because of the existence of
"special circumstances," RSA 458-C:5. Such "special
circumstances" include, as noted above, "ongoing extraordinary
. . . education expenses." RSA 458-C:5, I(a).

Under normal circumstances a trial court need not consider

private secondary education expenses when determining a non-
custodial parent's child support obligation because all children
are entitled to a public education. Instead, it is only when the
trial court finds that "special circumstances" exist that it
may require an obligor parent to contribute to private or
specialized education. RSA 458-C:5, I(a). So, while RSA 458:17,
I, read separately from the rest of the child support scheme, on
its face would appear to authorize an award of private secondary
education expenses in addition to the amount awarded under the
child support guidelines, such a deviation, absent "special
circumstances," would be inconsistent with the child support
guidelines. See RSA 458-C:5. Therefore, a trial court may
deviate from the child support guidelines to account for private
secondary education expenses only after a finding that "the
application of the guidelines would be unjust or inappropriate,"
RSA 458-C:4, II, IV, because of "special circumstances," RSA
458-C:5.

While this is an issue of first impression in New Hampshire,

other jurisdictions have addressed the parameters of "special
circumstances" for the purpose of ordering a non-custodial
parent to contribute towards the private education of a minor
child. These jurisdictions focus upon two conditions: (1) a
demonstrated "special need" of the child; and (2) the non-
custodial parent's "ability to pay." See Solomond v. Ball, 470
S.E.2d 157, 160 (Va. Ct. App. 1996); In re Marriage of Stern, 789
P.2d 807, 813 (Wash. Ct. App. 1990); In re Marriage of
Aylesworth, 165 Cal. Rptr. 389, 394 (Ct. App. 1980). This
approach is consistent with our own statute. See RSA 458-C:5.
Therefore, when making a finding that "special
circumstances" exist that warrant a deviation from the child
support guidelines so as to require a non-custodial parent to
contribute toward private secondary education expenses, the trial
court must find that both the child has a demonstrated "special
need" and the non-custodial parent has "an ability to pay."
Furthermore, when determining whether a demonstrated "special
need" exists, the trial court may consider such factors as: (1)
the child's attendance at private school prior to the separation
and divorce; (2) the availability of satisfactory public
education, including special education; (3) the child's academic
performance; (4) the child's family and/or religious tradition;
and (5) the child's particular emotional and/or physical needs.
See Ley v. Forman, 800 A.2d 1, 14 (Md. Ct. App. 2002); Lee v.
Maier, 728 A.2d 154, 156 (Me. 1999); Solomond, 470 S.E.2d at 160;
Wilson v. Wilson, 559 So. 2d 698, 700 (Fla. Ct. App. 1990);
Stern, 789 P.2d at 814; Aylesworth, 165 Cal. Rptr. at 394.

In this case the trial court required Coyne to contribute to

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the cost of Kathryn's private education without a finding of
"special circumstances." We hold that this was error and
remand for consideration of whether Kathryn's private education
expenses constitute "special circumstances."
Additionally, Coyne argues that the trial court may not
consider his current wife's income when determining whether to
order him to contribute towards Kathryn's tuition. Coyne points
to RSA 458-C:2, IV(b), which provides that when determining the
gross income of a parent, that parent's spouse's income "shall
not be considered as gross income to the parent unless the parent
resigns from or refuses employment or is voluntarily unemployed
or underemployed," and contends that, because neither condition
is present in this case, such income may not, therefore, be
considered. The circumstances in this case, however, deal, not
with determining Coyne's gross income, but rather with
determining whether to allow for a deviation from the child
support guidelines. RSA 458-C:5, I(c) expressly allows the trial
court to consider "[t]he economic consequences of the presence
of stepparents." Therefore, upon remand the trial court may
consider Coyne's current wife's income for the purpose of
determining whether "special circumstances" exist so as to
justify a deviation from the child support guidelines. See RSA
458-C:5, I(c).
Finally, we turn to Coyne's arguments that the trial court
is precluded from awarding Barrett private secondary education
expenses because she: (1) failed to pursue certain State and
federal remedies; and (2) failed to inform Coyne of her decision
to send Kathryn to private school, thus eliminating his ability
to pursue those remedies.

Concerning the former argument, we hold that "the

availability of a public education program and extensive federal
and state guidelines regarding special education does not
preclude a parent's decision to place a child in a private
school." Lee, 728 A.2d at 156. Rather, in evaluating the
placement of a child in private school, the court should
determine whether "special circumstances" warrant such
placement and may consider the "availability of satisfactory
public education, including special education" in its analysis
of "special needs."
As to the latter argument, Coyne points to RSA 186-C:16-b, I
and II, under which there exist statutory periods within which to
pursue certain "special education" remedies. Coyne contends
that because Barrett failed to inform him of her decision to
place Kathryn in private school, she eliminated his ability to
pursue those remedies on Kathryn's behalf, since by the time he
knew of such placement the statutory periods had expired. We
begin by noting that Coyne and Barrett share joint legal custody
of Kathryn. "Legal custody refers to the responsibility for
making major decisions affecting the child's welfare," 59 Am.
Jur. 2d Parent and Child 26 (2002), and legal custodians are
entitled to make the major decisions regarding the health,
education and religious upbringing of the child, Chandler v.
Bishop, 142 N.H. 404, 412 (1997). Thus, either Barrett or Coyne
is entitled to bring a petition for "special education" on
behalf of Kathryn, if they are unable to make a joint decision.
The trial court, in ruling against Coyne, found that Coyne
"had knowledge of his daughter's attendance at [Tilton]" and
did nothing to pursue "special education" on her behalf, thus
defeating his argument that his opportunity to pursue such
education was eliminated. We have not been provided with a
record of the first trial court hearing on October 2, 2002.
Absent such a record, we assume, for the purposes of appeal, that
the evidence supported the trial court's findings, and we limit
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our review to legal errors

apparent on the record available to us. See Dombrowski v.

Dombrowski, 131 N.H. 654, 663 (1989).
Though the trial court found that Coyne had knowledge of
Kathryn's attendance at Tilton, it did not specify whether that
knowledge arose within the relevant statutory time period. It is
clear from the limited record available to us that Coyne knew of
Kathryn's attendance at Tilton because he filled out the forms to
determine her financial aid. Though it is not clear from the
record exactly when he filled out those forms, we infer from the
trial court's ruling denying him relief that his knowledge must
have arisen within the relevant statutory time period. Coyne
does not argue that the lack of a record has prejudiced him. The
trial court did not commit any legal error and Coyne has
presented us with no basis to overturn its ruling.
Coyne also argues that his rights to due process and equal
protection under the law were violated by the trial court's
order. Because Coyne's constitutional arguments were not
adequately briefed and argued, we decline to address them. State
v. Schultz, 141 N.H. 101, 104 (1996).
Vacated and remanded.

BRODERICK, C.J., and NADEAU and DUGGAN, JJ., concurred;

BROCK, C.J., retired, specially assigned under RSA 490:3,
concurred.

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